Appeals from Original Decrees

Section 98(2): where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed. The proviso allows a differing even-numbered Bench of a larger Court to state the point of law on which they differ, and the appeal is then heard on that point only by one or more of the other Judges.

The rule in sub-section (2) is worth stating precisely: where the Bench is evenly divided, the decree appealed from stands. Doubt favours the existing decree.

Section 99: no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder or non-joinder of parties or causes of action, or any error, defect or irregularity in any proceeding, not affecting the merits of the case or the jurisdiction of the Court. The proviso excepts the non-joinder of a necessary party.

That proviso matches the one in Order I Rule 9. The Code is consistent: technical defects do not upset a decree, but the absence of a necessary party does. See [Parties to a Suit].

Section 99A applies the same principle to appeals from orders made under section 47.

The memorandum of appeal: Order XLI Rules 1 to 3

Rule 1(1): every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to an officer appointed for the purpose. The memorandum shall be accompanied by a copy of the judgment. The proviso allows the Appellate Court to dispense with more than one copy of the judgment where several appeals arise from one common judgment.

Rule 1(2), contents: the memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from, without any argument or narrative, and those grounds shall be numbered consecutively.

The words "without any argument or narrative" are the same discipline Order VI Rule 2 imposes on pleadings: state the grounds, do not argue them. See [Pleadings].

Rule 1(3): where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court allows, deposit the disputed amount or furnish such security as the Court thinks fit.

Rule 2: the appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum; but the Appellate Court, in deciding the appeal, shall not be confined to the grounds set forth in the memorandum or taken by leave. The proviso protects the respondent: the Court shall not rest its decision on any other ground unless the party who may be affected has had a sufficient opportunity of contesting the case on that ground.

Read Rule 2 as a pair of asymmetric rules. The appellant is confined to his memorandum unless he gets leave. The Court is not confined at all, but may not decide on an unargued ground without giving the affected party a chance to meet it.

Rule 3A deals with an appeal filed after the period of limitation: it must be accompanied by an application supported by affidavit stating the sufficient cause for not preferring it in time, and where the Court sees no prima facie case for condonation it may refuse to admit the appeal.

Stay of execution: Rule 5

This is the rule every practitioner uses and every student misstates.

Rule 5(1): an appeal shall not operate as a stay of proceedings under a decree or order appealed from, except so far as the Appellate Court may order, nor shall execution be stayed by reason only of an appeal having been preferred; but the Appellate Court may for sufficient cause order stay of execution.

So filing an appeal stays nothing. A separate order is needed.

The Explanation deals with the practical gap between an order being made and the trial court hearing of it: an order for stay is effective from the date of its communication to the Court of first instance, but an affidavit sworn by the appellant on his personal knowledge stating that a stay has been made shall be acted upon by the Court of first instance pending receipt of the order.

Rule 5(2): where an application for stay is made before the expiration of the time allowed for appealing, the Court which passed the decree may on sufficient cause order the execution to be stayed.

Rule 5(3): no order for stay shall be made under sub-rule (1) or (2) unless the Court is satisfied (a) that substantial loss may result to the applicant unless the order is made, (b) that the application has been made without unreasonable delay, and (c) that security has been given by the applicant for the due performance of the decree.

Those three conditions are the standard answer to "on what conditions will execution be stayed pending appeal", and the third is the one candidates forget.

Hearing the appeal: Rules 11 to 22

Rule 11 allows summary dismissal: the Appellate Court, after hearing the appellant, may dismiss the appeal without sending notice to the respondent if it does not think fit to admit it, recording its reasons.

Rule 16 governs the right to begin: the appellant begins, then the respondent, then the appellant may reply.

Rule 17 provides for dismissal for the appellant's default, and Rule 19 for its readmission where he shows sufficient cause for his non-appearance.

Rule 22, cross-objections: any respondent, though he may not have appealed, may support the decree on any of the grounds decided against him in the court below; and he may, within one month of service of notice of the day fixed for hearing or such further time as the Court allows, file a memorandum of cross-objection against any part of the decree, which shall be in the form of a memorandum of appeal and dealt with as an appeal.

Rule 22 answers a question students find puzzling: a respondent who won overall but lost on one issue does not have to file his own appeal to challenge that issue. He may support the decree on that ground, or file cross-objections.

Where the powers come from: section 107

Start an answer here, not at the rules. MU asked "Discuss the powers of appellate courts under the Code of Civil Procedure, 1908" in May 2023, and the rules below are only the working out of one section.

Section 107(1): subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power:

(a) to determine a case finally (b) to remand a case (c) to frame issues and refer them for trial (d) to take additional evidence or to require such evidence to be taken

Section 107(2), and this is the sweeping half: subject as aforesaid, the Appellate Court shall have the same powers, and shall perform as nearly as may be the same duties, as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted in them.

So the appellate court is not a court of limited review. By sub-section (2) it wears the trial court's powers, and the four heads in sub-section (1) are the ones peculiar to sitting in appeal. Each of the four is worked out in Order XLI: (a) by Rule 24, (b) by Rules 23 and 23A, (c) by Rule 25, and (d) by Rule 27.

Section 108 carries the whole of this Part across: the provisions relating to appeals from original decrees apply, so far as may be, to appeals from appellate decrees and to appeals from orders made under the Code or under any special or local law which does not provide a different procedure. That single section is why [Appeals from Appellate Decrees] and [Appeals from Orders] do not repeat the machinery.

Powers of the Appellate Court: Rules 23 to 33

Rule 23, remand: where the trial court has disposed of the suit on a preliminary point and the decree is reversed in appeal, the Appellate Court may remand the case and direct what issue or issues shall be tried, and may direct the retrial.

Rule 23A extends the power: where the decree is reversed in appeal and a retrial is considered necessary, the Appellate Court may remand even though the trial court did not dispose of the case on a preliminary point.

Rule 24: where the evidence on the record is sufficient to enable the Appellate Court to pronounce judgment, it may finally determine the suit, notwithstanding that the judgment of the trial court proceeded wholly on some ground other than that on which the Appellate Court proceeds.

Rules 23, 23A and 24 sit together and the choice between them is a real one: remand where a retrial is genuinely necessary, decide finally where the record already permits it.

Rule 25: where the trial court has omitted to frame or try any issue, or to determine any question of fact essential to a right decision, the Appellate Court may frame issues and refer them for trial to the court below, and direct that court to take the additional evidence required.

Rule 27, additional evidence. The parties shall not be entitled to produce additional evidence in the Appellate Court, whether oral or documentary, except where (a) the trial court refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce it establishes that notwithstanding the exercise of due diligence it was not within his knowledge or could not, after due diligence, be produced by him when the decree was passed, or (b) the Appellate Court itself requires any document or witness to enable it to pronounce judgment or for any other substantial cause. Where additional evidence is allowed, the Court shall record its reasons.

The rule is restrictive on purpose. An appeal is a rehearing on the existing record, not an opportunity to build a better case.

Rule 31 prescribes the contents of the appellate judgment: it shall state the points for determination, the decision thereon, the reasons for the decision, and where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.

Rule 32: the judgment may confirm, vary or reverse the decree.

Rule 33 is the widest power in the Order: the Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made, and to pass or make such further decree or order as the case may require, and this power may be exercised notwithstanding that the appeal is as to part only of the decree, and may be exercised in favour of all or any of the respondents or parties, although they may not have filed any appeal or objection.

Rule 33 is what allows an appellate court to do complete justice between all the parties, even in favour of someone who never appealed.

A worked example

Ganesh loses a suit and a decree for Rs. 8,00,000 is passed against him.

Does an appeal lie? Yes, under section 96(1), from a decree of a court exercising original jurisdiction, unless the case falls in one of the exceptions.

Suppose the decree was passed ex parte. Section 96(2): an appeal still lies. He also has the option of Order IX Rule 13, and under the Explanation to that rule an appeal disposed of otherwise than by withdrawal shuts that door. See [Appearance and Consequences of Non-appearance].

Suppose the decree was by consent. Section 96(3): no appeal lies at all.

What does he file? Under Rule 1, a memorandum signed by him or his pleader, accompanied by a copy of the judgment, setting out the grounds concisely, under distinct heads, without argument or narrative, numbered consecutively. Being a money decree, Rule 1(3) may require him to deposit the disputed amount or furnish security.

He wants execution stopped meanwhile. Rule 5(1): the appeal itself stays nothing. He must apply, and under Rule 5(3) the Court must be satisfied of substantial loss, no unreasonable delay, and security for due performance of the decree.

He wants to raise a ground he left out. Rule 2: only by leave of the Court. But the Court itself is not confined to his memorandum, provided the party affected gets a sufficient opportunity to meet the new ground.

The respondent won overall but lost on interest. Rule 22: he need not file his own appeal. He may support the decree on that ground, or file a memorandum of cross-objection within one month of service of notice of the hearing date.

The trial court decided the case only on limitation and never tried the merits, and the appellate court disagrees on limitation. Rule 23: the case may be remanded with directions as to the issues to be tried. But if the record already contains everything needed, Rule 24 allows the Appellate Court to decide the suit finally instead.

Ganesh wants to produce a document he found last week. Rule 27: only if he shows that despite due diligence it was not within his knowledge or could not be produced earlier, or one of the other grounds applies, and the Court must record its reasons.

A co-defendant who never appealed is also affected. Rule 33: the Appellate Court may pass any decree that ought to have been passed, in favour of a party who filed no appeal or objection.

Ganesh had earlier let a preliminary decree go unchallenged. Section 97: he is precluded from disputing its correctness in this appeal from the final decree.

What it does not mean

An appeal is not a stay. Rule 5(1) is explicit, and a separate order on the Rule 5(3) conditions is needed.

A consent decree is not appealable. Section 96(3).

Losing ex parte does not forfeit the appeal. Section 96(2).

An unappealed preliminary decree cannot be attacked later. Section 97.

Additional evidence is not available on request. Rule 27 confines it to refused evidence, evidence unobtainable despite due diligence, or evidence the Court itself requires, with reasons recorded.

A respondent who lost on one issue need not appeal. Rule 22 gives him cross-objections.

Technical defects do not upset a decree. Section 99, except non-joinder of a necessary party.

Quick revision

Section 107(1): an Appellate Court may determine the case finally, remand, frame issues and refer them for trial, and take additional evidence. 107(2): it otherwise has the same powers and duties as a court of original jurisdiction. Section 108 applies this Part to appeals from appellate decrees and from orders.

Section 96: appeal lies from every decree of a court of original jurisdiction; (2) ex parte decrees are appealable; (3) consent decrees are not; (4) in small-cause-type suits up to Rs. 10,000, only on a question of law. Section 97: an unappealed preliminary decree cannot be disputed in an appeal from the final decree. Section 98: decided by the majority; where there is no majority to vary or reverse, the decree is confirmed. Section 99: no reversal for misjoinder, non-joinder or irregularity not affecting the merits or jurisdiction, except non-joinder of a necessary party.

Order XLI Rule 1: memorandum signed, with a copy of the judgment; grounds concise, distinct, numbered, without argument or narrative; money decrees may require a deposit or security. Rule 2: the appellant is confined to his memorandum except by leave; the Court is not confined, but must give the affected party an opportunity. Rule 5: an appeal is not a stay; stay requires substantial loss, no unreasonable delay, and security. Rule 11: summary dismissal without notice to the respondent. Rule 22: cross-objections within one month of notice of the hearing date. Rules 23, 23A and 24: remand, or decide finally where the evidence on record suffices. Rule 25: frame issues and refer for trial. Rule 27: additional evidence only where evidence was wrongly refused, could not be produced despite due diligence, or the Court requires it; reasons recorded. Rule 31: the judgment states the points for determination, the decision, the reasons, and the relief. Rule 33: power to pass any decree that ought to have been passed, even in favour of a party who did not appeal.

Test yourself

1. From what decrees does a first appeal lie? Under section 96(1), from every decree passed by a court exercising original jurisdiction, to the court authorised to hear appeals from its decisions, save where otherwise expressly provided by the Code or any other law in force.

2. Name three cases in which no first appeal lies, or lies only on a question of law. No appeal lies from a decree passed with the consent of parties, under section 96(3). No appeal lies except on a question of law from a decree in a suit of the nature cognisable by Courts of Small Causes where the value does not exceed ten thousand rupees, under section 96(4). And a party who did not appeal a preliminary decree is precluded by section 97 from disputing its correctness in an appeal from the final decree.

3. What must a memorandum of appeal contain? It must be signed by the appellant or his pleader, be accompanied by a copy of the judgment, and set forth concisely and under distinct heads, without any argument or narrative, the grounds of objection to the decree appealed from, numbered consecutively: Order XLI Rule 1.

4. Does filing an appeal stay execution? No. Under Order XLI Rule 5(1) an appeal does not operate as a stay, and execution is not stayed by reason only of an appeal having been preferred. The Appellate Court may order a stay for sufficient cause, but under Rule 5(3) only if satisfied that substantial loss may result unless the order is made, that the application was made without unreasonable delay, and that security has been given for the due performance of the decree.

5. When may additional evidence be produced in appeal? Under Order XLI Rule 27, where the trial court refused to admit evidence which ought to have been admitted; where the party establishes that notwithstanding the exercise of due diligence the evidence was not within his knowledge or could not be produced when the decree was passed; or where the Appellate Court itself requires a document or witness to enable it to pronounce judgment or for any other substantial cause. The Court must record its reasons.

6. A respondent has not appealed but is dissatisfied with part of the decree. What can he do? Under Order XLI Rule 22 he may support the decree on any ground decided against him in the court below, and he may file a memorandum of cross-objection against any part of the decree within one month of service of notice of the day fixed for hearing, or such further time as the Court allows, which is dealt with as an appeal.

7. What is the extent of the Appellate Court's power under Rule 33? It may pass any decree and make any order which ought to have been passed or made, and such further decree or order as the case requires, notwithstanding that the appeal is as to part only of the decree, and it may exercise that power in favour of all or any of the respondents or parties even though they have filed no appeal or objection.